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1

 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

MICHAEL D. BURCH and THE

BANKRUPTCY ESTATE OF MICHAEL

D. BURCH,

NO. CIV. S-04-0038 WBS GGH

Plaintiffs,

v. MEMORANDUM AND ORDER

RE: DEFENDANTS’ EMERGENCY 

MOTION FOR RELIEF FROM ORDER

REGENTS OF THE UNIVERSITY OF

CALIFORNIA, LARRY VANDERHOEF,

GREG WARZECKA, PAM GILLFISHER, ROBERT FRANKS, and

LAWRENCE SWANSON,

Defendants.

----oo0oo---- 

Pursuant to Federal Rule of Civil Procedure 60(b),

defendants have filed an emergency motion for relief from the

court’s July 22, 2005 order, requesting that they specifically be

relieved from the portion of the order requiring them to produce

within ten days from the date of the order the documents

requested in plaintiffs’ May 31, 2005 motion to compel. 

Defendants contend that they did not have an opportunity to be

heard on the merits of the motion and that portions of the

documents at issue are privileged. 

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2

I. Factual and Procedural Background

On February 16, 2005, this court granted the parties’

stipulated request to modify the scheduling order in this case

by, among other things, moving the deadline for the completion of

discovery to April 11, 2005. (See February 16, 2005 Order at 4-

5). On April 13, 2005 the court granted another stipulated

request from the parties, extending “the deadline for completing

depositions in this case . . . through May 30, 2005.” (See April

13, 2005 Order at 3)(emphasis added). 

Because defendants requested and obtained several

extensions for their final document production, they did not

actually produce the final set of documents plaintiffs requested

until May 13, 2005. (Declaration of Kristen Galles in Supp. of

Pls.’ Mot. Under Rule 56(f) (hereinafter “Galles Decl.”) ¶ 8). 

Plaintiffs’ counsel states that the final document production was

deficient. (Id.). 

After defendants’ final production of documents, the

parties conducted depositions in this case throughout the weeks

of May 16 and May 23, 2005. (Id. ¶ 9). At the end of the second

week, on May 27, 2005, plaintiffs’ counsel held a final

conference with defense counsel to try to resolve what she viewed

as defendants’ inadequate document production. She then filed a

motion to compel on the next court day, which was May 31, 2005. 

(Id.). Plaintiff’s counsel states that she could not file a

motion to compel any sooner after receiving defendants’ final

production because she was engaged in depositions all day. She

did, however, discuss with defense counsel her problems with the

final production during breaks. (Id.). She further states that

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defense counsel had promised her full production if she withheld

filing a motion to compel so that defendants would have time to

gather the requested documents. (Id.). Defendants deny this. 

(See Begley Decl. in Supp. of Defs.’ Opp’n to Pls.’ Mot. Under

Rule 56(f) (“Begley Decl.”) ¶¶ 13-14).

On or about June 22, 2005, defendants filed an ex parte

application to deny plaintiff’s motion to compel as untimely, or

in the alternative, to continue the deadlines pertaining to

plaintiff’s motion to compel. On June 27, 2005, the assigned

magistrate judge vacated plaintiffs’ motion to compel on the

ground that it was untimely because it was filed beyond the

discovery deadline determined by this court’s scheduling order. 

(See June 27, 2005 Order of Magistrate Judge at 1). 

In the meantime, defendants filed two separate motions

for summary judgment in this case pursuant to Federal Rule of

Civil Procedure 56. In response, plaintiffs requested relief

from the court pursuant to Federal Rule of Civil Procedure 56(f). 

Plaintiffs’ counsel represented that she needed to obtain

outstanding discovery necessary to adequately oppose defendants’

motions, which discovery had been denied them by defendants. 

Defendants argued that plaintiffs’ Rule 56(f) application was

inexcusably untimely and argued that their summary judgment

motions should have been heard and decided as scheduled without

any substantive response from plaintiffs. After reviewing the

parties’ briefs and affidavits and considering the arguments

therein, the court found that plaintiffs could not present facts

essential to justify their opposition to defendants’ motions for

summary judgment. The court therefore denied defendants’ motions

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4

without prejudice subject to renewal after the completion of

additional discovery ordered by the court, made scheduling

changes, and granted plaintiffs’ motion to compel which was at

the heart of plaintiffs’ Rule 56(f) application. (See July 27,

2005 Order at 2-3). 

II. Discussion

A. Legal Standard

Federal Rule of Civil Procedure 60(b) authorizes the

court to “relieve a party . . .from a final judgment or order . .

. for [among other things] mistake [or] . . . any . . .reason

justifying relief from the operation of the judgment.” Fed. R.

Civ. P. 60(b). “Rule 60(b) does not particularize the factors

that justify relief, but . . . it provides courts with authority

‘adequate to enable them to vacate judgments whenever such action

is appropriate to accomplish justice.’” Lijeberg v. Health Servs.

Acquistion Corp., 486 U.S. 847 (1988)(citing Klapprott v. United

States, 335 U.S. 601, 614-15 (1949)). However, Rule 60(b) relief

should only be applied in “extraordinary circumstances.” Id. 

B. The Court Was Justified in Ruling on Plaintiffs’ Motion

to Compel Though Some Modification to the Prior Order

is Appropriate

Defendants contend that plaintiffs’ Rule 56(f)

application was untimely because the discovery deadline and

deadline for filing the motion to compel on which the Rule 56(f)

application relied had expired, and because plaintiffs had not

shown “good cause” for their late filing. Thus, in defendants’

view, it was too late for plaintiffs to file a motion to compel

in order to obtain discovery with which to prepare an opposition

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to defendants’ motions for summary judgment. Plaintiffs

contended that any untimeliness on their part was excusable.

Whether plaintiffs had a right to the discovery

requested in their motion to compel turned, in part, on whether

the motion was timely. See, e.g., Goodworth Holdings, Inc. v.

Suh, 239 F. Supp. 2d 947, 966 (N.D. Cal. 2002)(denying motion to

compel as untimely). This is because Rule 56(f) applications are

generally disfavored after the close of discovery because the

party seeking delay has already had an opportunity to obtain

discovery. See Conkle v. Jeong, 73 F.3d 909 (9th Cir. 1995);

Allstate Ins. Co. v. Gilbert, 852 F.2d 449 (9th Cir. 1988). 

However, even an untimely motion to compel may be granted where

production of discovery has been inadequate. Jorgensen v.

Cassiday, 320 F.3d 906, 913 (9th Cir. 2003). A relaxation of the

court’s scheduling order may also be in order where a party

making a Rule 56(f) application submits evidence demonstrating

that he filed an untimely motion to compel after relying on

representations by the opposing party that requested discovery

would be forthcoming. See M2 Software, Inc. v. M2 Comm., L.L.C.,

217 F.R.D. 499 (C.D. Cal. 2003). Further, a district court may

allow an untimely motion to compel to be heard even where the

court finds no good cause for extension if the party requesting

discovery acted reasonably and the requests are highly relevant,

Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), or where the

moving party would otherwise be “significantly handicapped.” 

Allen v. G.D. Searle & Co., 1988 U.S. Dist. LEXIS 13116 *3-4 (D.

Or. 1988). 

Plaintiffs filed their motion to compel on May 31,

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1 Plaintiffs only requested further deposition discovery

to the extent it became necessary to clarify any issues raised by

the document production they requested. (See Pls.’ Mot. Under

Rule 56(f) at 4).

2 Defendants denied that such a representation was ever

made. (See Begley Decl. ¶¶ 13-14). However, like the court in

M2 Software, 217 F.R.D. 499, this court chose to focus on the

sufficiency of plaintiffs’ evidence regarding the reason for

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2005. (See Pls.’ Mot. to Compel). However, the February 16,

2005 modification to the scheduling order set the deadline for

the completion of discovery on April 11, 2005. (February 16,

2005 Order at 4-5). This deadline was also the deadline for

filing a motion to compel, because, as the original scheduling

order made clear, the discovery deadline was also to be the

deadline to have all motions to compel “heard” and “any resulting

orders [therefrom] obeyed.” (See March 3, 2004 Status (Pretrial

Scheduling) Order at 3). The April 13, 2005 order granting the

parties’ stipulated request to extend the deadline for completing

depositions did not change the general discovery deadline or the

deadline for motions to compel production of other nondeposition

discovery. (See April 13, 2005 Order at 3). Nondeposition

discovery was what plaintiffs requested. (See Pls.’ Proposed

Order Re: Pls.’ Mot. Under Rule 56(f) at 2).1 Therefore,

plaintiffs’ motion to compel was untimely. 

However, plaintiffs’ tardiness in filing their motion

to compel was excusable under the circumstances. Plaintiffs’

counsel stated in her declaration that she relied on defense

counsel’s representations that all requested documents would be

produced to her satisfaction if she refrained from filing a

motion to compel. (See Galles Decl. ¶ 9).2 By the time she

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their untimely filing. Whatever misunderstanding the parties may

have had regarding document production and whether plaintiffs’

had to file a motion to compel to obtain requested discovery,

plaintiffs’ counsel’s declaration sufficiently demonstrated that

she had reason to delay filing a motion to compel. See id. at

500(looking to movant’s evidence to demonstrate that movant

relied on representations that document production would be

forthcoming in delaying to file motion to compel). 

7

received defendants’ final production on May 13, 2005 and

realized it was, in her opinion, deficient, she was already

facing two weeks’ worth of depositions that had to be completed

by May 30, 2005. (Id. ¶¶ 8-9). Though plaintiffs’ counsel

discussed the problems with defendants’ production during breaks

in the depositions, she was not able to file a motion to compel

until after she held a final conference with defense counsel

regarding the issue on May 27, 2005, after the depositions ended. 

(Id. ¶ 9). She then filed a motion to compel on May 31, 2005,

the next court day after her final conference with defendants. 

(Id.). Because plaintiffs’ counsel is a solo practitioner, she

could not have been expected to respond to defendants’ allegedly

inadequate production any sooner. (See Pls.’ Mot. Under Rule

56(f) Ex. 4 (Galles Decl. in Supp. of Pls.’ Emergency Mot. to

Change Hearing Date and Modify Scheduling Order) ¶ 1). She also

credibly represented that the discovery requested was critical to

her response to defendants’ motions. (See Galles Decl. ¶¶ 14-

16)(noting that plaintiffs needed production of documents to

demonstrate, among other things, that defendant Vanderhoef was,

contrary to his claims, involved in the termination of Mr. Burch;

that defendants’ claim that they decided to terminate Mr. Burch

before he engaged in protected activity is false; and that the

reasons defendants gave for terminating Mr. Burch are false). 

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Because plaintiffs’ delay in filing their motion to

compel was excusable and because the motion covered discovery

relevant to plaintiffs’ Rule 56(f) application, the court

considered and ruled on both the motion to compel and the Rule

56(f) application. 

Defendants contend that it was erroneous and unfair for

the court to rule on the motion to compel without giving

defendants an opportunity to make substantive objections to the

motion, especially where defendants had claimed that some of the

documents at issue were privileged. However, the court

determined that defendants waived any right to object to

plaintiffs’ motion to compel to the extent they misled plaintiffs

into believing that the requested documents would be produced. 

See Brandt v. Vulcan, Inc., 30 F.3d 752 n.9 (7th Cir.

1994)(acknowledging “that courts have inherent authority to

sanction discovery abuses”); Fjelstad v. Am. Honda Motor Co., 762

F.2d 1334, 1338 (9th Cir. 1985)(noting that “district courts may

rely on their inherent powers in penalizing some forms of

discovery abuse”). Nevertheless, upon reconsiderstion, the court

acknowledges that defendants’ representations that they would

produce all the requested discovery should not reasonably be

interpreted to mean that they would produce allegedly privileged

documents. (See Galles Decl. ¶ 14). Therefore, the court’s

prior order will be modified to the extent it encompassed the

production of documents alleged to be privileged. 

Plaintiffs have, however, raised questions regarding

the validity of some of defendants’ privilege claims. (See

Galles Decl. ¶ 15). The court does not wish to disregard

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plaintiffs’ concerns regarding defendants’ privilege claims. Nor

does it mean to impute any disingenuousness to defendants with

regard to their privilege claims. However, to allay plaintiffs’

concerns that defendants’ privilege claims are overbroad or

unmeritorious, the court will require defendants to file with the

court under seal all allegedly privileged documents requested by

plaintiffs, subject only to the court’s review. This requirement

will encourage defendants to scrutinize their privilege claims.

IT IS THEREFORE ORDERED that:

(1) defendants’ motion for relief from the court’s July

22, 2005 order be, and the same hereby is, DENIED IN PART AND

GRANTED IN PART;

(2) defendants shall produce all nonprivileged

documents requested in plaintiffs’ May 31, 2005 motion to compel

by August 3, 2005.

(3) on or before August 10, 2005, defendants shall file

with the court under seal copies of any documents requested in

plaintiffs’ May 31, 2005 motion to compel which defendants claim

to be privileged; and

(4) except as herein modified, all other provisions of

this court’s order of July 22, 2005 remain in full force and

effect.

DATED: July 29, 2005

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